(Question A.1, Political Law, 2019 Bar Exam)
Define the following terms:
(a) Jus cogens (2%)
(b) Principle of double criminality (2%)
(c) Act of State doctrine (2%)
(d) Precautionary principle (2%)
(a) Jus cogens (literally, “compelling law”) – refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.
(b) Double criminality rule – the extraditable offense must be criminal under the laws of both the requesting and the requested states. This simply means that the requested state comes under no obligation to surrender the person if its laws do not regard the conduct covered by the request for extradition as criminal.
(c) The act of state doctrine – is one of the methods by which States prevent their national courts from deciding disputes which relate to the internal affairs of another State, the other two being immunity and non-justiciability. It is an avoidance technique that is directly related to a State’s obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent. It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits.
(d) Precautionary principle – states that when human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat.
(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)
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